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Published on 7 June 2019
[All names used in this article are fictitious]
When a lawyer has a client and an interpreter is required, relying on an intermediary to the extent that all communication is through them seems to be “fraught with danger”, a lawyers standards committee has said.
The committee was considering a complaint from a client who instructed the lawyer, Flite, and his firm on an application to Immigration New Zealand.
The client made a series of complaints, and the committee examined whether Flite had failed to obtain the client’s instructions and acted without authority, whether Flite had failed to keep the client informed, whether Flite may have forged a document, and whether Flite failed to charge a fee that was fair and reasonable.
After examining the issues, the committee found that there was insufficient evidence to determine that Flite had failed in any of those areas. In fact, the committee noted that Flite and his firm did “substantial work” for the client “and it appeared to have been performed competently”.
Although the committee decided to take no further action on the complaint, it considered there was educational value in the decision, particularly highlighting the potential issues that may arise when advising a client through an intermediary.
The committee said it acknowledged the practical reality that Flite and his firm faced when acting for a client with a limited level of English. While a translator was clearly required, the committee considered that “relying on an intermediary to the extent that all communication is through them, and there are no direct instructions taken, seems to be fraught with danger”.
In such circumstances, a lawyer may be prevented from receiving adequate instructions and from communicating effectively with his or her client. It also “opens up the possibility of facilitating a breach of the Immigration Advisers Licensing Act 2007 (IALA)”, the committee said.
Immigration lawyers in Flite’s position need to be “wary of the possibility that an intermediary, be they an interpreter or a person referring others to the lawyer, may stray outside the range of activities permitted by the IALA”.
“That may occur inadvertently or deliberately.”
Immigration lawyers must therefore be “alive to the risk” that an entity might use their services as a front for providing unlicensed advice as was alleged, but not proven, in this case. Lawyers such as Flite ought to be vigilant to protect their clients from the risk of receiving unlicensed advice from an intermediary.
“A simple step towards doing so would be to ensure a sufficient degree of direct contact with all three parties being present – either physically or, at the very least, on the telephone or via Skype or similar technology,” the committee said.
An initial meeting should be a priority, the committee said. “This would enable the scope of the engagement to be clarified, expectations to be met, and a professional relationship to be established.”
In addition, the committee considered it wise to have further direct contact as the legal work is carried out.
“This would provide an opportunity for the practitioner to ensure that the client has been kept adequately informed and that the interpreter has performed their task adequately and without straying into giving unlicensed legal advice.”